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Common sense must prevail in addressing family court logjam

The House of Commons Justice Select Committee opened an inquiry into ‘Court Capacity’ on 30 July 2020, with invitations to submit evidence.  The inquiry follows the publication of a report on the significant crisis in delays to court cases – and therefore justice – caused by the Covid-19 pandemic.

The Committee inquiry is looking in to how these delays could be addressed. It will review the practical experience of delays in the courts for lawyers, witnesses, victims and defendants. It will investigate whether the increase of 4,500 court sitting days will be sufficient to clear the backlog of cases and what long term solutions to the delays, including digital hearings, may be possible.

The following is the submission made to the inquiry by National Family Mediation, which draws in part on a recent judgement by His Honour Judge Wildblood QC, which can be found here.

The crisis in family courts, caused initially by overload of litigants-in-person, has been hugely compounded by pandemic-induced delays.

Heaped on top of these two factors comes a soaring level of litigation over trivial issues that do not need court. We should be grateful to His Honour Judge Wildblood QC for his judgement of 25 September 2020, which signalled alarm at “the extent to which court lists are being filled by interim private law hearings that should not require court involvement.”

These “requests for micro-management” are clearly on the rise, and the implications for pressures on the public purse are similarly obvious.

The message was clear: that clients should settle “differences (or those of your clients) away from court, except where that is not possible.”

The crisis is clear to see. Sadly, so is a key element of the long-term solution – yet many in government appear unable to see it.

Government Ministers have trumpeted mediation as a means of keeping separating families out of court, and expressed a wish for its expansion and increased take-up. They agree with National Family Mediation (NFM) that more separating families need to reap the benefits. The taxpayer and court system can benefit too.

Yet some simple and relatively inexpensive measures that could be taken to address some of the acute court capacity issues that this inquiry seeks to investigate are overlooked.

NFM is not arguing for wholesale legislative change, with the upheaval and expense that would bring.

As realists, we recognise we have to work with what we have. And the truth is it’s already in place. It just needs to be used better.

NFM has three key observations and proposals that it submits to this Inquiry:

1. Mediation Information and Assessment Meetings (MIAMs) to be made free of charge to all. With a 73 per cent conversion from MIAM meeting to full mediation, and a 70 per cent agreement rate resulting from this conversion (source: Family Mediation Council, 2020), the government will reap the benefits of more families reaching agreements away from court – reducing the burden on the court system and the taxpayer.

The simplest way to improve MIAM attendance and therefore conversion to full mediation would be to make the now-compulsory MIAM meeting freely available to all, particularly at the point people are making application to court.

There would be a relatively nominal additional cost to this measure, compared to the huge and rising costs of running family courts and providing other private family law services.

2. Improved gatekeeping, so that the courts are confident that people have in fact been to the ‘compulsory’ MIAM. This would involve some minor administrative changes, but the impact would make it worthwhile.

3. Courts should use the powers they already have. Judges should be encouraged to make use of their existing powers under S.11a of the Children Act 1989 to adjourn cases for MIAM attendance as a contact activity – either separate to an order to attend a SPIP programme or at the same time, and as routine when cases are set to face significant delay before they come to court.

This would give mediators access to more separating couples, helping reduce the family court logjam.

In essence, the government can and should promote and fund mediation much more vigorously in order to alleviate the extra pressure that Covid has imposed on the creaking family court system.

There should be no more expensive taxpayer-funded court hours for judges to decide issues such as: at which motorway junction should a child be handed over for contact; which parent should look after the child’s passport; or how Sunday afternoon contact should be arranged. These are all real examples cited by His Honour Judge Wildblood QC.

Greater awareness of this nonsensical situation would no doubt fuel taxpayer fury. Common sense must prevail.

And by applying common sense, the government can move closer to implementing the demand of Judge Wildblood’s 25 September 25 judgement: “Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so.”